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What’s behind the inconsistent progress on native treaties?

Dozens of treaty negotiation tables that are currently stalled or suspended.

Gary Alexcee, chief councillor of the Nisga'a people in British Columbia, calls home in 2000 to say the tribe's treaty with the Crown has won Senate approval. Many other government-aboriginal negotiations remain stalled. (April 13, 2000) (TOM HANSON / CP)

The federal government has announced major changes to the comprehensive land claims process but what effect will these reforms have on the dozens of treaty negotiation tables that are currently stalled or suspended? To answer this question, we need to cover a bit of history on modern treaties.

In 1973, the federal government invited aboriginal groups that had never signed treaties with the Crown to negotiate what it called “comprehensive land claims agreements,” otherwise known as modern treaties. These agreements transfer significant amounts of land, resources and jurisdiction to aboriginal groups in exchange for establishing certainty and finality regarding the ownership of Crown lands.

For the federal government, negotiating comprehensive land claims agreements was necessary to address the uncertainty created by a decade of aboriginal protests and a Supreme Court decision that confirmed the existence of aboriginal title. A modern treaty, federal officials hoped, would clear the way for economic development by eliminating any uncertainty regarding the ownership of Crown lands. Aboriginal leaders, on the other hand, welcomed the opportunity to negotiate these agreements, seeing them as a potentially powerful tool for achieving economic prosperity and self-determination for their communities.

This initial optimism, however, was soon replaced by pessimism as negotiations initially produced very few agreements. After the first treaty in 1975, for instance, the next treaty wasn’t completed until 1986. Although many more agreements were finalized after 1986, progress overall remained quite slow. In B.C., for instance, 20 years of negotiations produced three treaties, despite dozens of active negotiating tables.

Why has progress been so slow? Most commentators criticize the federal government for the lack of progress. They blame it for having inflexible negotiation mandates and for failing to provide adequate financial support to the aboriginal groups. Others point their fingers at unimaginative government negotiators or a lack of political will.

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But these criticisms only tell part of the story. Indeed, if governments are inflexible and unsupportive, why have some aboriginal groups been able to complete modern treaties?

We also need to take into account the role that aboriginal groups play in the treaty process. Specifically, four factors seem to matter for treaty completion:

Aboriginal groups that want to complete a treaty must adopt goals that are compatible with the Crown’s. In practice, this means accepting the Crown’s interest in establishing certainty and finality over Canadian lands.

Aboriginal groups must avoid using confrontational tactics. Federal, provincial, and territorial officials prefer to work with groups that negotiate rather than litigate and protest.

Aboriginal groups must forge internal cohesion as it relates to the treaty process. Groups that suffer from significant internal distress and political infighting are unlikely to complete treaties.

Finally, aboriginal groups must foster positive government perceptions of themselves. Federal, provincial and territorial governments do not want to complete treaties with groups that struggle with governance, accountability and transparency, and political corruption issues. They want success stories, not political embarrassment and criticism.

Groups that are unable to pursue these four strategies must accept the status quo — no treaty — or pursue an alternative to treaties, such as incremental treaty agreements, bilateral agreements, self-government agreements or incremental legislative reforms, like the First Nations Land Management Act, to try and immediately improve standards of living in their communities and increase their capacity to complete treaties at a later date.

Recently, the federal government announced a set of major reforms to the modern treaty process. Among other things, Ottawa plans to focus the bulk of its resources and effort on those aboriginal groups that it thinks are most likely to complete treaty negotiations. Other groups will be encouraged to pursue alternatives to build capacity and improve their communities.

So what will happen?

I think progress will accelerate significantly for groups capable of completing negotiations. Others will be encouraged to choose an alternative to the treaty process, which will provide them with an opportunity for capacity building and for improving standards of living for their communities. But for the majority struggling to complete negotiations, the reforms will probably have little effect on their ability to complete a modern treaty.

Christopher Alcantara is associate professor of political science at Wilfrid Laurier University. His new book, Negotiating the Deal: Comprehensive Land Claims Agreements in Canada, is now available from University of Toronto Press.

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